Green Power K/S and SCE Solar Don Benito APS v Kingdom of Spain: How EU Law Allegedly Trumps International Investment Law

Abstract

The Green Power arbitral tribunal is the first tribunal ever (and so far, the only one) that accepted the EU law jurisdictional objections raised by an EU Member State. For this reason alone, this decision is historic. Instead of adopting a public international law perspective for determining the question whether it has jurisdiction, the arbitral tribunal adopted an European law perspective and therefore considered itself bound by the CJEU jurisprudence regarding Achmea and Komstroy. With its decision, which came out only a week before the Contracting Parties to the ect concluded their modernisation negotiations in which the EU and its Member States agreed to carve out the arbitration provision for intra-EU ECT disputes, the arbitral tribunal showed that it had a good sense of what was to come in any event. The consequences of all this are that European investors will be stuck with the domestic courts of the Member States and the European Court of Human Rights – with all their limitations.